Obama's Natural Choice of Kagan by Glenn Greenwald

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Mon May-10-10 08:31 AM
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Obama's Natural Choice of Kagan by Glenn Greenwald

Obama's Natural Choice of Kagan
by Glenn Greenwald
May 10, 2010

It's anything but surprising that President Obama has chosen Elena Kagan to replace John Paul Stevens on the Supreme Court. Nothing is a better fit for this White House than a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration's lawyer vigorously defending every one of his assertions of extremely broad executive authority. The Obama administration is filled to the brim with exactly such individuals -- as is reflected by its actions and policies -- and this is just one more to add to the pile. The fact that she'll be replacing someone like John Paul Stevens and likely sitting on the Supreme Court for the next three decades or so makes it much more consequential than most, but it is not a departure from the standard Obama approach.

Why would the American public possibly embrace a set of beliefs when even its leading advocates are unwilling to publicly defend them and instead seek to avoid that debate at every turn? Hence: Obama chooses an individual with very few stated beliefs who makes the Right quite comfortable (even as they go through the motions of opposing her). As Kevin Drum writes:

"ight now Obama has the biggest Democratic majority in the Senate he's ever going to have. So why not use it to ensure a solidly progressive nominee like Diane Wood instead of an ideological cipher like Kagan? . . . . When Obama compromises on something like healthcare reform, that's one thing. Politics sometimes forces tough choices on a president. But why compromise on presidential nominees? Why Ben Bernanke? Why Elena Kagan? He doesn't have to do this. Unfortunately, the most likely answer is: he does it because he wants to."

It's even less surprising that Obama would not want to choose someone like Diane Wood. If you were Barack Obama, would you want someone on the Supreme Court who has bravely and resolutely insisted on the need for Constitutional limits on executive authority, resolutely opposed the use of Terrorism fear-mongering for greater government power, explicitly argued against military commitments and indefinite detention, repeatedly applied the progressive approach to interpreting the Constitution to a wide array of issues, insisted upon the need for robust transparency and checks and balances, and demonstrated a willingness to defy institutional orthodoxies even when doing so is unpopular? Of course you wouldn't. Why would you want someone on the Court who has expressed serious Constitutional and legal doubts about your core policies? Do you think that an administration that just yesterday announced it wants legislation to dilute Miranda rights in the name of Scary Terrorists -- and has seized the power to assassinate American citizens with no due process -- wants someone like Diane Wood on the Supreme Court?

One final thought about Kagan for now. As I said from the beginning, the real opportunity to derail her nomination was before it was made, because the vast majority of progressives and Democrats will get behind anyone, no matter who it is, chosen by Obama. That's just how things work. They'll ignore most of the substantive concerns that have been raised about her, cling to appeals to authority, seize on personal testimonials from her Good Progressive friends, and try to cobble together blurry little snippets to assure themselves that she's a fine pick. In reality, no matter what they know about her (and, more to the point, don't know), they'll support her because she's now Obama's choice, which means, by definition, that she's a good addition to the Supreme Court. Our politics is nothing if not tribal, and the duty of Every Good Democrat is now to favor Kagan's confirmation. Conservatives refused to succumb to those rules and ended up with Sam Alito instead of Harriet Miers, but they had a much different relationship to George Bush than progressives have to Obama (i.e., conservatives -- as they proved several times -- were willing to oppose their leader whey they disagreed). The White House knows that progressives will never try to oppose any important Obama initiative, and even if they were inclined, they lack the power to do so (largely because unconditional support guarantees impotence).

Read the full article at:

http://www.commondreams.org/view/2010/05/10-3